State
of U.P. Vs. Raghubir Singh [1996] INSC 1611
(13 December 1996)

M.M.
Punchhi, K.T. Thomas Thomas. J.

ACT:

HEAD NOTE:

Leave
granted.

This
is an appeal by the State challenging the acouittal of two accused Manpal Singh
(A-1) and his father- in-law Raghubir Singh (A-2), in a murder case. During the
pendency of the special leave petition Manpal Singh died and hence the petition
against him stood abated. So we heard counsel for the State of U.P. and counsel for Raghubir Singh (A-2) on the merits
of the appeal.

The
case involved kidnapping and murder of a minor boy (Ashok). The victim Ashok
was 6 years old when he was murdered. He was none other than the youngest
brother of accused Manpal Singh. He and his father-in-law Raghubir Singh were
alleged to have kidnapped the lad and throttled him to death and the dead body
was dumbed in a bit in a kachha room wherein a bumping set was noused. Sessions
Judge convicted both the accused of offences under Sections 364 and 302 read
with Section 34 of the IPC and sentenced them each to rigorous imprisonment for
five years and imprisonment for life respectively under the two counts. But a
Division Bench of the High Court of Allahabad, on appeal filed by the convicted
persons, set aside the conviction and acquitted both. Hence the State filed
this appeal challenging the acquittal.

Facts
in brief: Accused Manpal Singh and deceased Ashok were sons of Choki Singh in
his third wife Ramsri (PW-1).

Their
female children included Sheela Devi (DW-1). They were living in village Jaleshwar
(Eta District, U.P.). Accused Manpal Singh married the daughter of accused Raghubir
Singh (A-2) and two years after his marriage he shifted his residence to Agra where Raghubir Singh was residing with his family.
Accused Manpal Singh prevailed upon his father Choki Singh to give him half
share of the landed properties and Manpal Singh wangled the sale proceeds from
his father who sold away half of his landed property. Manpal Singh invested the
money in a joint venture which he was carrying on with his father-in-law. After
the death of Choki Singh, accused Manpal Singh pressurised his mother to give
him the property left behind by his father, but his mother (Ramsri - PW-1) did
not yield to such pressures. A few days prior to the occurrence both the
accused went to JaleshwarVillage and ploughed the land which his father left behind. This
was resisted by PW-1 Ram Sri. Accused Manpal Singh then threatened her that
should she persist with her resistence he would not mind even to finish off the
remaining male heir (Ashok). But his mother did not take the threat seriously,
but the threat was made into reality on the fateful day.

On
29.11.1977 while the child Ashok was playing on the roadside near his residence
both accused went near him and caught hold of him. As they tried to forcibly
drag him the child screamed. His mother Ramsri hearing the cry of her child
came out of the house and on seeing the happenings she protested in a strident
voice. Some neighbors were attracted to the scene. As they saw both the accused
dragging the child by neck they moved forward to rescue the victim but accused Manpal
Singh then whipped out a pistol and brandisned it threatening with the querry
"you too want to die?" The neighbors retreated and than the two
accused carried the child to the engine shed to Maharaj Singh (PW-2) which is
situate next to the compound of Ramsri. They killed the child by throttling him
and dumped the dead body in a pit wherein a pump set was installed. When the
neighbors found that the killers had slipped away from the kaccha room without
the boy they anxiously rushed to the shed and saw the horrifying sight of the
death body of the child lying submerged in the bit.

The
matter was reported to the police on the next day.

Both
the accused were arrested and after the completion of investigation both the
accused were challenged for the crimes.

Prosecution
story was spoken to by Ramsri (PW-1) as well as Maharaj Singh (PW-2) and Adal
Singh (PW-3) who was Pradhan of the village. Learned Sessions Judge accepted
the aforesaid evidence and convicted them and sentenced them as aforesaid.

Division
Bench of the High Court of Allahabad (Polok Basu and K. Narain, JJ.) which
reversed the conviction and sentence made scathing criticism on the judgment of
the trial court. The Division Bench assailed the Session Judge observing that
"he has not even cared to look into the statement of defence witness Sheela
Devi". Learned counsel who argued for the appellant - State has pointed
out that the Division Bench of the High Court has overlooked the fair dealing
given by the Sessions Judge to the defence witness and the rightful reasons
adverted to by him declining to act on her evidence. Counsel then contended
that the Division Bench was totally unjustified in interfering with the well
reasoned conviction and sentence passed by the trial court.

There
is no doubt that the child Ashok was murdered by throttling. Dr. Daya Shankar
(PW-4), who conducted the autopsy, had given adequate data in the Post-mortem
Report to support his finding that the child was murdered by throttling. There
is also no dispute that body of the child was found in the water of the bit
wherein bump set of Maharaj Singh (PW-2) was installed. PW-1 Ramsri. PW-2 Maharaj
Singh and PW-3 Adal Singh have said in unison that the child was physically
lifted up by both the accused and taken to the engine shed and later the
kidnappers had slipped out of the room without the child and when the witnesses
entered the engine room they found the dead body of the child lying in the pit.

If the
aforesaid evidence is accepted by the court there is no escape for the accused
from conviction of the murder of the child but learned Judges of the Division
Bench of the High Court swept off PW-1 Ramsri solely on the ground that her daughter
Sheela Devi (DW-1) spoke derisively of the moral character of her mother. True
DW-1 Sheela Devi said in her evidence that her mother was living in adultery
with one Ram Pal even during the life-time of her husband Choki Singh. Those
imputations made by the daughter were disbelieved by the Sessions Judge lock
stock and barrel after discussing her evidence in extense. We may extract nere
that part of the judgment of the Sessions Judge dealing with the evidence of
DW-1:

"In
this case, the testimony of Smt. Ramsri regarding the occurrence of murder as
such has remained unshaken. She deserves greater reliance because she is the
own mother of the accused Man Pal Singh. The defence also tried to assail her
character by suggesting that she had illicit relations with one Ram Pal, who is
the `Sadhoo' of Maharaj Singh (PW-2). I regard this attempt as only a cruda
method of saving the accused. The allegation against Smt. Ramsri was that she
had illicit relations with aforesaid Ram Pal. But her daughter Smt. Sheela Devi
(DW-1) who has been examined in the defence, says that Smt. Ramsri was carrying
on illicit relations with Ram Pal and one Edal Singh at the same time.

She
came out with a version that her mother Smt. Rashri had quit living with her
father and had adopted residence in a kothri of Shopkeeper of her village,
which was situated considerably away from her residential house, She further
claimed that on one evening she herself saw Smt. Rashri lying on the same cot
with Ram Pal in that Kothri. Her statement shows that the door of the kothri
was opened to the mainstreet of the village and at the relevant time, the doors
had not been even bolted from inside. Obviously such statement of Smt. Ramsri
deserves no credence whatsoever." But the Division Bench of the High
Court, evidently overlooking the above discussion of the Session Judge, has
made an unwholesome criticism against the judgment of the trial court in the
following words:

"It
is strange that the learned Sessions Judge has not even cared to refer to the
statement of defence witness and possibly he did not know that she was examined
as he has finished the judgment with an observation that no imoutation has been
made by the defence to challenge the two independent witnesses namely Maharaja
Singh and Edal Singh for which there was a clear statement of DW-1 Smt. Sheela Devi
which also had some bearing with the reference to the cross- examination of
PW-1 Smt. Ramshree." The Division Bench reiterated it in stronger terms at
the benultimate portion of the judgment thus: "It is unfortunate that
learned Sessions Judge has not even cared to look into her (DW-1 Sheela Devi's)
statement." It was uncharitable on the part of the Division Bench to have
made such a baseless criticisms on the Sessions Judge who took pains to discuss
the evidence of DW-1 at a considerable length and advanced sturdy reasons for
not placing reliance on the evidence of DW-1.

Now
the question is should the court have allowed defence witness to make such
imputations on the moral character of her mother in a case where the fact in
issue was whether the accused have kidnapped and murdered her son? Section 140
of the Evidence Act permits that "witnesses to character may be
cross-examined and re-examined." Section 155 of the Act permits the adverse
party to impeach the credit of a witness in the modes enumerated in the
Section.

The
first mode envisaged is by adducing evidence of persons who testify that they
believe the witness to be unworthy of credit. Questions to elicit indecent or
scandalous imputations from witnesses in the guise to shake the credit of
another witness of party should not have been permitted.

Section
151 of the Act saddles every trial court with the power to forold such
questions such questions "although such questions or inquiries may have
some bearing on the questions before the Court unless they relate to facts in
issue." (The second and third modes envisaged in Section 155 are not
relevant in this context) The 4th mode prescribed in the Section applies to a
limited class of cases. It is:

"when
a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecurtix
was of generally immoral character." In an early decisions of Patna High
Court in Mahammad Mian vs. Emperor. 52 Indian Cases 54, it was pointed out that
if inquiries involving any scandalous matters are made with a purpose of
shaking the credit of a witness "the court has complete dominion over them
and may forbid such questions even though they may have some bearing on the
question before the Court." But Court may have not discretion to forbid
such questions, if they relate to the facts in issue or to matters necessary to
be known in order to determine whether or not the facts in issue existed. A
Division Bench of the Calcutta High Court in Subala Dass vs. Indra
Kumar Hazzva & Ors., AIR 1923 Cal.
315. had to consider the objection raised by the opposite side when a question
was but to the defendant during examination whether the defendant was made
pregnant by certain person. The counsel who but the question defended it on the
premise that it was relevant as his client had a case that defendant did not
inherit the property by reason of her unchastity during the life-time of her
husband. The Division Bench pointed but that if the fact in issue was whether
the defendant was disentitled to inherit the property by reason of her unchastity
then the question would be relevant. "If, however, it was asked for
impeaching her credit as a witness." the Court will have to consider its
powers to forbid such questions.

If the
fact in issue was concerning the paternity of the child Ashok, perhaps, some
relevance to the moral life of his mother could have been assumed. But in this
murder case where the mother of the child gave evidence that her son was
murdered we find little scope for conducting any inquiry into the moral life of
the mother. Law does not permit even the child of a prostitute to be murdered.
The murderer in such a case cannot escape by establishing that the mother of
the child was of loose morals. We, therefore, depricate evidence of DW-1 as
quite unnecessary and irrelevant in this case.

Unfortunately
the Division Bench of the High Court did not consider the evidence of two other
very important witnesses (PW-2 Maharaj Singh and PW-3 Adal Singh). The entire
discussion of the Division Bench appears to be focused on the moral character
of the mother of the child.

PW-2 Maharaj
Singh is important in this case as the incident happened inside the engine shed
belonging to him. PW-3 Adal Singh was the Pradhan of the village. Both
witnesses were immediate neighbors of the house of the deceased. Both of them
said in clear terms that the two accused were seen dragging Ashok to the engine
shed and the witnesses raised their protests but could not go near the assailants
as they adopted a highly bellicose stance by pointing lethal weapon.

They
further said that when the accused had evacuated from the engine shed without Ashok
they rushed to the shed and found Ashok lying dead in the bit. Trial court
placed full reliance on their testimony. But the Division Bench of the High
Court, instead of considering the worth of the evidence, niggled on some
irrelevant features and by-passed the evidence of PW-2 and PW-3 very
improperly.

High
Court did not accept the evidence of PW-2, not because of any inherent
infirmity discerned from it, but because on the day when PW-2 deposed in the
trial court. One Ram Pal (described as a baramour of PW-1 Ramsri) was also
present in the court building. About the evidence of PW-1 and PW-2 the High
Court made a general comment that if the witnesses had come when Ashok was
being dragged away by the assailants. Ramsri would have rushed to rescue Ashok.
In that context High Court made a further comment while dealing with PW-1's
evidence that she did not see whether the dead body was floating or drowned in
water and still no effort was made to take the body out. "This is rather
impossible for any mother if she was behaving as a mother to have avoided to go
to the body." The said comment was very unkind as against the mother. Her
mental balance when confronted with the shocking scene and the shocking news of
her 6-year old playing son suddenly killed, could not have been as the learned
Judges wished her to behave.

Suffice
it to conclude that the impugned judgment has resulted in miscarriage of
justice as a well merited conviction has been reversed. We have no hesitation
in upsetting the said judgment of the High Court. We, therefore, set aside the
acquittal of the second accused Raghubir Singh and restore the conviction and
sentence passed on him by the trial court. We direct the trial court to take
immediate steps to put the second accused Raghubir Singh back to jail to
undergo the remaining period of sentence.